United States v. Orellana-Sibrian ( 2023 )

Case: 23-10251 Document: 00516916745 Page: 1 Date Filed: 10/02/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10251
Summary Calendar FILED
____________ October 2, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Vidal Orellana-Sibrian,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CR-408-1
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam: *
Vidal Orellana-Sibrian appeals his sentence for illegal reentry into the
United States after being removed, in violation of 8 U.S.C. § 1326(a) and
(b)(1). He argues that because the indictment did not allege, and he did not
admit as part of his guilty plea, that he sustained a qualifying conviction prior
to his removal, the district court erred by imposing a sentence that exceeded
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10251 Document: 00516916745 Page: 2 Date Filed: 10/02/2023
No. 23-10251
the otherwise-applicable statutory maximum established by § 1326(a).
However, he correctly concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and he raises this
issue merely to preserve it for further review. See United States v. Pervis, 937
F.3d 546, 553-54 (5th Cir. 2019). The Government has moved, without
opposition, for summary affirmance, or in the alternative, for an extension of
time to file a brief on the merits.
Because summary affirmance is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s motion
for summary affirmance is GRANTED, the Government’s alternative
motion for an extension of time to file a brief is DENIED, and the district
court’s judgment is AFFIRMED.
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